Restoney Robinson, Plaintiff-appellant, v. Bruce Marion, Sgt. Martindale, Nurse Marsh, Defendants-appellees, 810 F.2d 195 (4th Cir. 1987)

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U.S. Court of Appeals for the Fourth Circuit - 810 F.2d 195 (4th Cir. 1987)

Submitted Dec. 12, 1986. Decided Jan. 16, 1987


Before PHILLIPS, ERVIN and CHAPMAN, Circuit Judges.

Restoney Robinson, appellant pro se.

Jacob Leonard Safron, Office of the Attorney General, for appellees.

PER CURIAM:


Restoney Robinson, a North Carolina inmate, appeals the dismissal of his 42 U.S.C. § 1983 complaint as frivolous pursuant to 28 U.S.C. § 1915(d). Robinson alleged that his rights were violated when prison officials forced him to submit to a tuberculin test after being warned by Robinson that an earlier tuberculin test had caused him temporary blindness and nausea. Robinson claims that he again suffered a temporary loss of vision.

Robinson's complaint states both a due process and an Eighth Amendment claim, neither of which can be said to be legally frivolous. See Boyce v. Alizaduh, 595 F.2d 948, 952 (4th Cir. 1979). In Jacobson v. Massachusetts, 197 U.S. 11 (1905), a case commonly cited in upholding forced inoculation and testing, the Supreme Court recognized that in particular cases forced inoculation could be so arbitrary and oppressive as to be unconstitutional. Under these circumstances a 28 U.S.C. § 1915(d) dismissal of Robinson's case was premature.

Accordingly, we vacate the district court's dismissal and remand this case for further development. As the dispositive issues recently have been decided authoritatively, we dispense with oral argument.

VACATED AND REMANDED.